Pages

3/5/07

If You're Unhappy...

Geez, I go away for the weekend and you all go crazy on me! I love it. And I thought I'd hit a hot button when I got 6 comments on a post. But we've set an all-time record here. And my hit stats are through the roof. Thank you.

A lot of the comments were tangential to my post, and that is just fine. But they did bring up a good question:

What do you do if you're really unhappy with your publisher but you're locked into a contract?

I wish the LDS publishing industry was big enough to support agents. An agent's job is to negotiate with the publisher in YOUR behalf. They are the Doberman whose job it is to protect YOU. Good agents "get" the legal talk found in contracts and can predict how that language will effect you, given various scenarios. They also work with attorneys who specialize in publishing contracts. A competent agent won't let you sign something that is patently unfair or detrimental to your long-term career.

But we don't have agents because the industry is too small and so authors are left to fend for themselves. Many LDS authors think that since they're dealing with LDS publishers they will automatically be treated fairly and honorably, as our religious tenets demand. Many times (I would hope, most times) they are. Sometimes they are not. To be safe, smart authors will have an attorney who is familiar with the publishing industry review their contract before they sign them.

If it's too late for that and you're really unhappy with your publisher and your current contract, the first thing you do is try to re-negotiate your contract in a professional manner. Most publishers are reasonable people. If you've sold well for them, they're more likely to work with you to come to some mutually acceptable agreement.

If they're resistant to your attempts, perhaps you can find another author within the same company who has successfully negotiated their contract and have him/her mentor you. Or find another author who has successfully broken or nullified their contract with your publisher, and discover how they did it.

If you've really exhausted all your options for peaceful negotiation, and you're sure you're being reasonable* and the publisher is a tyrant and just won't budge, contact an attorney. Many in the LDS culture are hesitant to sue but if that's your only recourse then seriously consider it--especially if you've been a productive, well-received author and this contract is effectively ending your career. Find a good attorney who specializes in contract law and who has some experience in the publishing industry.

Since ROFR was specifically mentioned, let me say that most ROFR clauses, like most non-compete clauses in the rest of the business world, are unenforceable. Legal ROFR clauses must be reasonably limited by time and/or number of books and/or genre. If yours is not, seek legal help. You may be able to force them to delete the ROFR or the judge may nullify the entire contract. If you know other authors who have that same clause in their contract and are equally upset over it, you might have grounds for a class action suit.

However, a word of caution. If you are not the reasonable one, even if you succeed in breaking your contract with your publisher, other publishers might be leery about signing you. You might want to speak with a couple of other publishers to see if: a) their contract is different; b) they are outraged at the terms of your contract or at least think you have a legitimate complaint; and c) they'd be willing to take you on when you get out of your current contract.

*You have a reasonable complaint if their ROFR commits you to more than two years and more than the next two books. You are unreasonable if you think you should get 20% royalties, or a 50 city book tour paid for by the publisher, or that they will accept your next manuscript without edits, or...

9 comments:

Lawyers advising LDS authors? Its a bit of a mess in Utah. There is a reason New York is the mecca for publishing. All the human infrastructure is in place, including lawyers who specialize in publishing. Try finding one in Utah. They don't exist. I think there are two---one at McConkie et. al who advises Deseret Book and another in Sandy at (name with held) who specializes in patent law and does some publishing. But still those accomplished lawyers are still woefully inexperienced at divining the future based on your contract. Covenant's own lawyer is a contract guy without anymore experience in publishing than the next contract lawyer in the yellow pages. Nearly all, if not all contract lawyers (who by the way are the best alternatives to a lawyer experienced in publishing law) take a read of the Covenant contract and say nebulous things like, "gosh it looks pretty good. There are a couple of things in it that may be an issue, but since you're publishing LDS stuff, you probably don't have many options anyway, so go for it." I can get that kind of advice from my parrot. But sadly its typical of the lawyerly advice available to LDS authors in Utah. Deseret is not a publishing mecca. Lawyers without years of experience in the publishing arena (or years mentoring under one who has spent a lifetime in that arena) lack one important feature: they haven't seen enough contract-based outcomes to give you the advice you need. They don't understand the long term effects of a publishing agreement on an author's future. What you want from a good lawyer experienced in publishing contracts is a fortune teller---a lawyer who looks into the future and based on the contract produces a number of possible "what-if" scenarios for what your future could possibly look like if things go well and what could happen if things sour down the road two, five and ten years from now. That's the advice an author needs, and no matter how many of you may know a good contract lawyer, NONE of them have on the job experience to paint those possible outcomes in living color and allow you to make some decent decisions about your future. You're not hiring a lawyer for two hours for his opinion about the wording in the contract. You want scenarios. You need possible outcomes. You need damage assessments of the future. You need a prophet and in Utah, the only one you'll find doesn't hire out to anyone.

It doesn't matter if you've sold well when you work for a control freak. No matter how many times you professionally ask, no matter how patient you are, how kind you are, how absolutely loyal you are. If your ROFR falls into the hands of a domineering publisher, you can kiss your freedom and the Free Market goodbye. Protest against any form of ROFR, period. If the book is good enough, that's the publisher's reward---a book that sells well. And if the publisher behaves, then they earn your trust for another submission. If they don't behave, you have other options. Second, get to know the publisher. Talk may be cheap, but it is also very revealing. Don't talk to management. Talk to publishing house employees. If there are lingering myths or stories about management being controlling, manipulative or more important, if you find that open and honest communication between employees and authors is controlled, prohibited or, sadly, manipulated, you can bet your bottom dollar (and your first royalty check) that you will likely be treated the same way.

Why is understanding the culture of the publishing house important? The next time you want to negotiate a change in your publishing agreement and you have signed on with a controlling, nay, a paranoid employer, expect to have your communication stifled, expect to be intimidated, coerced or even worse, humiliated out of changes to your contract. This is not the best advise for negotiating your contract, but given the lack of good publishing lawyers in Utah and the total non-existence of LDS publishing agents, it is at least something you can do to keep from being totally blind-sided by a contract that limits your ability to operate in the free-market economy.

My opinion, for what it's worth, is that ROFR shouldn't have to exist. If you publish with a certain house and are happy with the experience and terms, why wouldn't you go back to that house? I would think publishers and authors would work together to have mutually appealing terms so that they would have a long-term relationship.

ROFR can be limiting and should at least contain specific language limiting the type of work it refers to and set a time limit for the publisher to review it.

Sounds like you really are at an impass, which is really unfortunate. But just to point out that there are two sides to every story, I've never had any issue which Covenant wouldn't listen to. Every concern I've had they've been willing to negotiate on.

Just out of curiosity, if they cut you lose today, what would you do? I know they have rights to your series, which EVERY publisher would require. So do you really want to start writing something new with a smaller LDS publisher?

Or do you think DB would want to jump into the same controversial quagmire you and their sister publisher have ended up in?

LDS Publisher: You're right about finding lots of contract lawyers in Utah. They just don't have the experience in publishing. None of them. Fifteen minutes of web surfacing comes up with a tidy list of names. A few hours of phone calling will reveal the sad news that none of them have any significant experience in advising an author about their contract-based future.

The reason ROFR exists specifically in the LDS market is because there is a huge funnel between the two BIG publishers and the dozen small ones. A writer might not have the merit to get a contract with Covenant or DB with their first book, but as they grow as a writer their second or third book could be at the level that DB and/or covenant would accept and there is a huge difference between what the big houses can do for an author and what the smaller houses just can't. that the two big boys together own 85% of the retail market makes the chasm between the publishers even bigger. The big houses need control over content because they represent the values of the LDS readers, the smaller houses need control over their authors packing up and jumping onto the larger boat when they are finally good enough to do so. ROFR keeps the big house authors from publishing content that could reflect poorly on the large houses with a smaller press and the ROFR keeps the small house authors from leaving when catch the attention of the big boys. But not all ROFRs are created equal. As has been said, until we have agents or the market becomes a more even playing field between publisher and retail exposure it will stay in place--in a sick way it kinda has too.